Chase M. Lentz v. Department of the Interior ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHASE M. LENTZ, DOCKET NUMBER
Appellant, SF-0752-15-0363-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: January 11, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chase M. Lentz, Fresno, California, pro se.
Kevin D. Mack, Esquire, Sacramento, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, and based on the following points and
authorities, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed an appeal alleging that he was constructively discharged
from his position as a Botanist. Initial Appeal File (IAF), Tab 1. The record
reflects that, on May 15, 2014, the appellant received a letter of reprimand (LOR)
based on charges of acting outside the scope of his authority and conduct
unbecoming. IAF, Tab 5, Subtab 4e. On November 13, 2014, the appellant
received a notice proposing a 14-day suspension, charging him again with acting
outside the scope of his authority and conduct unbecoming. Id., Subtab 4d. The
appellant responded to the proposed suspension. IAF, Tab 3 at 107-181. In a
February 10, 2015 decision, the deciding official sustained both charges and the
proposed 14-day suspension penalty, effective February 15, 2015. IAF, Tab 5,
Subtab 4c. On February 11, 2015, the appellant notified the agency that he was
resigning from his position, effective February 13, 2015. Id., Subtab 4b. The
agency processed the appellant’s resignation effective February 13, 2015, which
stated the reason for his resignation as: “I have been subjected to many acts of
harassment and a hostile work environment, that has severely aggravated an
illness and disabilities. Circumstances were so intolerable that I needed to
resign.” Id., Subtab 4a.
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¶3 Because it appeared that the Board may not have jurisdiction over the
appellant’s claim that his resignation was involuntary, the administrative judge
issued an order informing the appellant that a resignation is presumed to be
voluntary and that, unless he alleged that his resignation was the result of duress,
coercion, or misrepresentation by the agency, his appeal would be dismissed.
IAF, Tab 2 at 2-3. The administrative judge ordered the appellant to provide
evidence and argument amounting to a nonfrivolous allegation that the Board has
jurisdiction over his claim of an involuntary resignation. Id. at 4. In response,
the appellant submitted numerous documents and argued that his resignation was
coerced because the agency brought unjustifiable charges in support of its
reprimand and 14-day suspension. IAF, Tabs 3, 6. The agency filed a motion to
dismiss the appeal for lack of jurisdiction, arguing that the appellant failed to
raise a nonfrivolous allegation that his resignation was involuntary. IAF, Tab 4.
After considering the appellant’s responses, the administrative judge dismissed
the appeal for lack of jurisdiction without holding the requested hearing, finding
that the appellant failed to nonfrivolously allege that a reasonable person in his
position would have felt compelled to resign due to coercive or improper acts by
the agency. Initial Decision (ID) at 9.
¶4 The appellant has filed a petition for review in which he alleges, inter alia,
that he resigned to avoid a threatened adverse action that the agency knew or
should have known could not be substantiated and that his other avenues of
redress have been fruitless, such as filing an equal employment opportunity
complaint, Office of Special Counsel (OSC) complaints, a USERRA 2 appeal, and
grievances. Petition for Review (PFR) File, Tab 1. The agency did not file a
response.
¶5 The appellant bears the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. Parrott v. Merit Systems Protection Board,
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Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at
38 U.S.C. §§ 4301-4333).
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519 F.3d 1328, 1332 (Fed. Cir. 2008); 5 C.F.R. § 1201.56(a)(2). An employee’s
resignation is presumed to be a voluntary action and, as such, is not within the
Board’s jurisdiction. Thomas v. Department of Housing & Urban Development,
63 M.S.P.R. 649, 656 (1994). The Board will afford an appellant a hearing on
jurisdiction over the appeal of an alleged involuntary resignation if the appellant
makes a nonfrivolous allegation of fact that would rebut the presumption of
voluntariness. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643
(Fed. Cir. 1985). A nonfrivolous allegation is one that, if proven, establishes a
prima facie case that the appellant’s resignation was involuntary. Dumas v. Merit
Systems Protection Board, 789 F.2d 892, 893-94 (Fed. Cir. 1986). The
presumption that a resignation is voluntary can be rebutted by evidence showing
that the resignation was the result of agency misrepresentation, coercion or
duress. Scharf v. Department of the Air Force, 710 F.2d 1572, 1574-75 (Fed. Cir.
1983).
¶6 Here, the appellant asserts on review that the agency “has been taking
unsubstantiated, escalating disciplinary actions against me and has expressed
their desire to terminate me.” PFR File, Tab 1 at 9. The appellant asserts that the
administrative judge erred in finding that the LOR and the 14-day suspension had
not constituted improper acts or otherwise created intolerable working conditions.
Id. at 12. The appellant contends that the “unjustified escalating disciplinary
actions would have led to other unjustified adverse actions resulting in my
removal.” In this regard, he asserts that he had heard rumors that his supervisor
had stated she was going to remove him and he contends that it was wrong for the
agency to threaten him with a baseless adverse action. Id.
¶7 The test for determining whether a resignation was the result of coercion is
whether: (1) the appellant involuntarily accepted the agency’s terms; (2) the
circumstances permitted no other alternative; and (3) the circumstances were the
result of the agency’s coercive acts. Edgerton v. Merit Systems Protection Board,
768 F.2d 1314, 1316-17 (Fed. Cir. 1985); Barnett v. U.S. Postal Service,
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59 M.S.P.R. 125, 127-28 (1993). The fact that an employee is faced with the
unpleasant choice of either resigning or opposing a potential removal action does
not rebut the presumed voluntariness of his ultimate choice of resignation.
Schultz v. U.S. Navy, 810 F.2d 1133, 1136-37 (Fed. Cir. 1987). However,
inherent in such a proposition is the presumption that the agency had “reasonable
grounds for threatening to take an adverse action.” Id. If the appellant can show
that the agency knew that the reasons for the threatened removal could not be
substantiated, the action would be purely coercive and would render his resulting
resignation involuntary, thereby making his appeal within the Board’s jurisdiction
and entitling him to reinstatement. See Barthel v. Department of the Army,
38 M.S.P.R. 245, 251 (1988). To make this showing, the appellant must do more
than merely rebut the agency’s reasons for the threatened action. See id.
¶8 Here, there is no evidence that the agency imposed the terms of the
resignation. Further, the administrative judge thoroughly considered the
appellant’s claim that his resignation was coerced. ID at 5-20. As the
administrative judge correctly found, the appellant did not explain why he did not
continue to challenge the 14-day suspension action by filing a grievance or a
discrimination complaint, instead of resigning before it went into effect, since he
already had filed a discrimination complaint over the proposed action. ID at 9.
The administrative judge also correctly found that the appellant failed to
adequately explain why the LOR had been a factor compelling him to resign,
since it had occurred over 8 months prior to his resignation, and he previously
had filed an OSC complaint and a discrimination complaint contesting it. Id.
While the appellant challenges the administrative judge’s finding that he failed to
nonfrivolously allege that there was a complete lack of support for the LOR and
14-day suspension by continuing to argue that the agency’s actions were
unsubstantiated, we agree with the administrative judge that the appellant has
failed to make a nonfrivolous allegation that the agency knew or should have
known that the LOR and 14-day suspension could not be substantiated.
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Moreover, as to the appellant’s claim that his supervisor allegedly stated that she
was going to remove him, the agency had not proposed his removal at the time of
the resignation, and mere conjecture of an adverse action does not constitute
coercion or duress on the part of the agency. Holman v. Department of Treasury,
9 M.S.P.R. 218, 220 (1981), aff’d, 703 F.2d 584 (Fed. Cir. 1982) (Table).
¶9 The appellant also argues that he was subjected to a hostile work
environment and that he resigned because the agency created unreasonably
difficult working conditions by setting forth, in both the LOR and the notice of
proposed suspension, impossible work expectations that were meant to punish
him and justify future disciplinary actions. PFR File, Tab 1 at 13-14. Intolerable
working conditions may render an action involuntary when, under all the
circumstances, the working conditions were made so difficult by the agency that a
reasonable person in the employee’s position would have felt compelled to absent
himself from the workplace. Wright v. Department of Veterans Affairs,
85 M.S.P.R. 358, ¶ 25 (2000). Thus, the appellant has to show that a reasonable
person would have felt that there was a causal connection between all of the
circumstances, including those incidents that were remote in time, and his
resignation. See Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 26 (2000).
¶10 In this case, the administrative judge found that the appellant failed to
nonfrivolously allege that the agency’s issuance of these expectations constituted
an improper act or otherwise created intolerable working conditions that gave him
no realistic alternative but to resign. ID at 10-14. The administrative judge noted
that the appellant stopped coming to work and was on leave from November 14,
2014, until his resignation and that he failed to adequately explain why
management’s expectations would have made him feel he needed to resign as he
had not been performing his duties for the 3 months preceding his resignation. ID
at 13. Further, the administrative judge properly found that the appellant failed to
nonfrivolously allege that the agency created working conditions so difficult that
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a reasonable person in his position would have felt compelled to resign. ID
at 14-17.
¶11 The appellant also asserts that the administrative judge erred by dismissing
incidents remote in time to his resignation, i.e., the LOR, or his nonselection to
various agency positions. However, even where the Board has expressly set forth
the totality of the circumstances test or cited to Heining v. General Services
Administration, 68 M.S.P.R. 513 (1995), which applies that test, the Board has
found that, under certain circumstances, events may be too remote in time to have
affected a reasonable person’s decision to resign. See Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 13 (2010) (5 months’ lapse of time undercuts the
appellant’s assertion that working conditions were intolerable) (citing Terban v.
Department of Energy, 216 F.3d 1021, 1025 (Fed. Cir. 2000) (discussing that
evidence that a relatively short period of time elapsed between the alleged
coercion and the employee’s resignation is probative of involuntariness)); Bates
v. Department of Justice, 70 M.S.P.R. 659, 663-66 (1996) (finding that an
incident that occurred approximately 2 years prior to the employee’s resignation
was too remote in time to have caused her to resign and to have rendered her
resignation involuntarily). Here, the administrative judge found that the appellant
failed to adequately explain how the issuance of the May 15, 2014 LOR, or the
work expectations within that LOR, created intolerable working conditions that
caused him to resign on February 11, 2015, 9 months later, especially in light of
the fact that he had taken leave and was not performing the expectation/duties of
his position for the 3 months prior to his resignation. ID at 9. As to his
nonselection to positions in May 2012, November 2013, and April 2014, the
administrative judge found that, while the appellant felt disappointment over his
nonselections, the appellant failed to nonfrivolously allege why such
disappointment would cause him to resign. ID at 15.
¶12 Although the appellant disagrees with the administrative judge’s
determination that he has failed to adequately explain why these events compelled
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him to resign, the applicable law and the record evidence support the
administrative judge’s determination that the appellant failed to make a
nonfrivolous allegation that a reasonable person would have felt that there was a
causal connection between all of the circumstances, including those incidents that
were remote in time, and his resignation. ID at 5-20. Therefore, we discern no
reason to disturb these explained findings. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative
judge’s findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶13 To the extent the appellant contends that he had to resign because his other
avenues of redress have proven to be fruitless, the fact that other avenues of
redress may have involved protracted procedures or may have been unsuccessful
does not establish that his choice to resign was involuntary. See Schultz,
810 F.2d at 1136-37; see also Musone v. Department of Agriculture, 31 M.S.P.R.
85, 89 (1986) (determining that an appellant’s retirement in order to obtain an
annuity and avoid the financial pressures facing him if he opposed the removal
action does not establish coercion), aff’d, 818 F.2d 876 (Fed. Cir. 1987) (Table).
¶14 Finally, the appellant asserts on review that he was subjected to a
constructive suspension when the agency denied his reasonable accommodation
requests and forced him to take leave. PFR File, Tab 1 at 29. First, to the extent
that the appellant, by this argument, is disagreeing with the administrative judge’s
determination that the appellant failed to nonfrivolously allege that he was
coerced into resigning because of the agency’s discriminatory or retaliatory
actions, ID at 18-19, we must disagree. Second, while the appellant asserted
below that his use of sick leave was a result of a hostile work environment, he did
not argue that he was constructively suspended during this period of time. IAF,
Tabs 1, 3, 6. Thus, he raises this argument for the first time on review. Because
the appellant has made no showing that this argument is based on new and
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material evidence not previously available despite his due diligence, we have not
considered it. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980). Accordingly, we conclude that the appellant has provided no basis upon
which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.